Court Tosses Out
FCC Rules to Curb
Indecent Speech

By

Amy Schatz And

Jess Bravin

Updated July 14, 2010 12:01 a.m. ET

A federal appeals court threw out the FCC's rules on indecent speech Tuesday, in a big win for broadcasters that could lead to a new Supreme Court test of the government's power to control what is said on television and radio.

A three-judge panel of the Second U.S. Circuit Court of Appeals in New York said the Federal Communications Commission's indecency policies violate the First Amendment and are "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."

The decision doesn't mean broadcast TV and radio shows will now be littered with profanity, because advertisers and viewers would likely complain. But the ruling will likely end, for now, the commission's campaign to cleanse the airwaves of even spontaneous vulgarisms with the threat of hefty fines.

"I think the notion that broadcasters are going to be dropping f-bombs in prime time is ludicrous," said Dennis Wharton, a spokesman for the National Association of Broadcasters. "If we wanted to do that we could do that from 10 p.m. to 6 a.m.," when FCC indecency standards don't apply.

The judges found that the agency's decision to sanction broadcasters' airing of one-time or "fleeting" expletives is unconstitutional, and suggested the FCC's broader indecency enforcement efforts are unconstitutional as well.

The judges left the door open for the FCC to try to write a new indecency policy that does pass constitutional muster. They indicated such a policy would have to be very specific, and leave little to the discretion of government regulators.

It's also possible the Supreme Court could be asked to revisit rulings that have formed the basis for government curbs on indecent broadcast speech, including a 1978 decision that allowed the FCC to fine a radio station for broadcasting a monologue on dirty words by the late comedian George Carlin.

The appeals court suggested such a review could be overdue, as today's "media landscape," with hundreds of cable and satellite channels and Internet-based video sites and social networks, "would have been almost unrecognizable in 1978."

Broadcasters and free-speech advocates applauded the decision, while Fox Television, which led the case against the FCC along with other broadcast networks, said it "always felt that the government's position on fleeting expletives was unconstitutional."

Fox is a division of News Corp., which also owns The Wall Street Journal.

Broadcasters complained they couldn't figure out when they had run afoul of FCC indecency cops. The rules have always been somewhat subjective. The FCC said ABC's un-bleeped airing of the World War II movie "Saving Private Ryan" was permissible, but later fined a PBS station for airing a documentary on blues musicians that included some of the same profanities.

"We agree with the networks that the indecency policy is impermissibly vague," Judge Rosemary Pooler wrote for the court.

Fox and other broadcasters sued the FCC in 2006 after the agency said the networks had violated indecency rules when airing un-bleeped profanities of celebrities during live televised events. It was part of a broader effort by the Bush-era FCC to crack down on broadcast profanities and racy programming that saw indecency fines skyrocket.

Former FCC Chairman Michael Powell, who led expanded FCC efforts to crack down on raunchy broadcasts during the Bush administration, said he thought the court's decision was inevitable. "I have long believed the constitutional underpinnings of indecency law were weak," he said.

The FCC offered few clues on Tuesday about what it might do now. FCC Chairman Julius Genachowski released a statement saying the agency was reviewing the decision.

The ruling could have implications for another high-profile indecency case, involving CBS Corp.'sCBS.A-0.20% $500,000 fine for airing a brief exposure of singer Janet Jackson's breast during her performance at the 2004 Super Bowl. Last year the Supreme Court ordered the Third Circuit, in Philadelphia, to re-examine its judgment in favor of CBS on technical issues. If CBS loses, however, it could ask to have its Super Bowl case reconsidered on constitutional grounds in light of Tuesday's ruling.

The Second Circuit court had suggested in 2007 that FCC indecency policies violated broadcasters' First Amendment rights. But it struck down the rule on narrower grounds, finding the commission failed to follow proper procedures in adopting it. In April 2009, the Supreme Court reversed the procedural ruling, but sent the case back to the Second Circuit to consider First Amendment questions.

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